Florida Senate - 2009                                      SB 84
       
       
       
       By Senator Wilson
       
       
       
       
       33-00082-09                                             200984__
    1                        A bill to be entitled                      
    2         An act relating to the sentencing of juveniles;
    3         amending s. 985.565, F.S.; authorizing the court to
    4         sentence a juvenile using juvenile sanctions, adult
    5         sanctions, or a blend of juvenile and adult sanctions;
    6         requiring the Department of Juvenile Justice to file a
    7         written report with the court if the department
    8         believes that the child's sanction is inappropriate;
    9         authorizing the court to place the child on probation;
   10         requiring the department to notify the court before it
   11         discharges a child from a sanction; requiring the
   12         court to review the child's educational needs
   13         assessment and make specific findings as to the
   14         child's educational status; authorizing the court to
   15         order that the child attain appropriate educational
   16         goals; listing certain appropriate education goals;
   17         reenacting s. 985.556(1), F.S., relating to the
   18         voluntary waiver of juvenile court jurisdiction, to
   19         incorporate the amendments made to s. 985.565, F.S.,
   20         in a reference thereto; providing an effective date.
   21         
   22  Be It Enacted by the Legislature of the State of Florida:
   23         
   24         Section 1. Section 985.565, Florida Statutes, is amended to
   25  read:
   26         985.565 Sentencing powers; procedures; alternatives and
   27  blended sanctions for juveniles prosecuted as adults;
   28  educational attainment.—
   29         (1) POWERS OF DISPOSITION.—
   30         (a) A child who is found to have committed a violation of
   31  law may, as an alternative to adult dispositions, be committed
   32  to the department for treatment in an appropriate program for
   33  children outside the adult correctional system or be placed on
   34  juvenile probation.
   35         (b) In determining whether to impose juvenile sanctions,
   36  instead of adult sanctions, or blended juvenile and adult
   37  sanctions, the court shall consider the following criteria:
   38         1. The seriousness of the offense to the community and
   39  whether the community would best be protected by juvenile or
   40  adult sanctions.
   41         2. Whether the offense was committed in an aggressive,
   42  violent, premeditated, or willful manner.
   43         3. Whether the offense was against persons or against
   44  property, with greater weight being given to offenses against
   45  persons, especially if personal injury resulted.
   46         4. The sophistication and maturity of the offender.
   47         5. The record and previous history of the offender,
   48  including:
   49         a. Previous contacts with the Department of Corrections,
   50  the Department of Juvenile Justice, the former Department of
   51  Health and Rehabilitative Services, the Department of Children
   52  and Family Services, law enforcement agencies, and the courts.
   53         b. Prior periods of probation.
   54         c. Prior adjudications that the offender committed a
   55  delinquent act or violation of law as a child.
   56         d. Prior commitments to the Department of Juvenile Justice,
   57  the former Department of Health and Rehabilitative Services, the
   58  Department of Children and Family Services, or other facilities
   59  or institutions.
   60         6. The prospects for adequate protection of the public and
   61  the likelihood of deterrence and reasonable rehabilitation of
   62  the offender if assigned to services and facilities of the
   63  Department of Juvenile Justice.
   64         7. Whether the Department of Juvenile Justice has
   65  appropriate programs, facilities, and services immediately
   66  available.
   67         8. Whether adult sanctions would provide more appropriate
   68  punishment and deterrence to further violations of law than the
   69  imposition of juvenile sanctions.
   70         (2) PRESENTENCE INVESTIGATION REPORT.—
   71         (a) Upon a plea of guilty, the court may refer the case to
   72  the department for investigation and recommendation as to the
   73  suitability of its programs for the child.
   74         (b) Upon completion of the presentence investigation
   75  report, it must be made available to the child's counsel and the
   76  state attorney by the department prior to the sentencing
   77  hearing.
   78         (3) SENTENCING HEARING.—
   79         (a) At the sentencing hearing the court shall receive and
   80  consider a presentence investigation report by the Department of
   81  Corrections regarding the suitability of the offender for
   82  disposition as an adult or as a juvenile. The presentence
   83  investigation report must include a comments section prepared by
   84  the Department of Juvenile Justice, with its recommendations as
   85  to disposition. This report requirement may be waived by the
   86  offender.
   87         (b) After considering the presentence investigation report,
   88  the court shall give all parties present at the hearing an
   89  opportunity to comment on the issue of sentence and any proposed
   90  rehabilitative plan. Parties to the case include the parent,
   91  guardian, or legal custodian of the offender; the offender's
   92  counsel; the state attorney; representatives of the Department
   93  of Corrections and the Department of Juvenile Justice; the
   94  victim or victim's representative; representatives of the school
   95  system; and the law enforcement officers involved in the case.
   96         (c) The court may receive and consider any other relevant
   97  and material evidence, including other reports, written or oral,
   98  in its effort to determine the action to be taken with regard to
   99  the child, and may rely upon such evidence to the extent of its
  100  probative value even if the evidence would not be competent in
  101  an adjudicatory hearing.
  102         (d) The court shall notify any victim of the offense of the
  103  hearing and shall notify, or subpoena if appropriate, the
  104  parents, guardians, or legal custodians of the child to attend
  105  the disposition hearing.
  106         (4) SENTENCING ALTERNATIVES.—
  107         (a) Adult sanctions.—
  108         1. Cases prosecuted on indictment.—If the child is found to
  109  have committed the offense punishable by death or life
  110  imprisonment, the child shall be sentenced as an adult. If the
  111  juvenile is not found to have committed the indictable offense
  112  but is found to have committed a lesser included offense or any
  113  other offense for which he or she was indicted as a part of the
  114  criminal episode, the court may sentence as follows:
  115         a. As an adult;
  116         b. Under chapter 958; or
  117         c. As a juvenile under this section.
  118         2. Other cases.—If a child who has been transferred for
  119  criminal prosecution pursuant to information or waiver of
  120  juvenile court jurisdiction is found to have committed a
  121  violation of state law or a lesser included offense for which he
  122  or she was charged as a part of the criminal episode, the court
  123  may sentence as follows:
  124         a. As an adult;
  125         b. Under chapter 958; or
  126         c. As a juvenile under this section.
  127         3. Notwithstanding any other provision to the contrary, if
  128  the state attorney is required to file a motion to transfer and
  129  certify the juvenile for prosecution as an adult under s.
  130  985.556(3) and that motion is granted, or if the state attorney
  131  is required to file an information under s. 985.557(2)(a) or
  132  (b), the court must impose adult sanctions.
  133         4. Any sentence imposing adult sanctions is presumed
  134  appropriate, and the court is not required to set forth specific
  135  findings or enumerate the criteria in this subsection as any
  136  basis for its decision to impose adult sanctions.
  137         5. When a child has been transferred for criminal
  138  prosecution as an adult and has been found to have committed a
  139  violation of state law, the disposition of the case may include
  140  the enforcement of any restitution ordered in any juvenile
  141  proceeding.
  142         (b) Juvenile sanctions.—For juveniles transferred to adult
  143  court but who do not qualify for such transfer under s.
  144  985.556(3) or s. 985.557(2)(a) or (b), the court may impose
  145  juvenile sanctions under this paragraph. If juvenile sanctions
  146  sentences are imposed, the court shall, under this paragraph,
  147  adjudge the child to have committed a delinquent act.
  148  Adjudication of delinquency shall not be deemed a conviction,
  149  nor shall it operate to impose any of the civil disabilities
  150  ordinarily resulting from a conviction. The court shall impose
  151  an adult sanction or a juvenile sanction or and may not sentence
  152  the child to blended juvenile and adult sanctions a combination
  153  of adult and juvenile punishments. An adult sanction or A
  154  juvenile sanction or a blended juvenile and adult sanction may
  155  include enforcement of an order of restitution or probation
  156  previously ordered in any juvenile proceeding. However, if the
  157  court imposes a juvenile sanction and the department determines
  158  that the sanction is inappropriate unsuitable for the child, the
  159  department shall provide the sentencing court with a written
  160  report outlining the basis for its objections to the juvenile
  161  sanction and shall simultaneously provide a copy to the state
  162  attorney and defense counsel. The department shall return
  163  custody of the child to the sentencing court for further
  164  proceedings, including the imposition of juvenile sanctions,
  165  blended juvenile and adult sanctions, alternative sanctions, or
  166  adult sanctions. Upon adjudicating a child delinquent under
  167  subsection (1), the court may sentence the child to juvenile
  168  probation, juvenile commitment, blended juvenile and adult
  169  sanctions, or alternative sanctions under ss. 985.435, 985.437,
  170  985.439, 985.441, 985.445, 985.45, and 985.455.:
  171         1. The court may place the child on in a probation program
  172  under the supervision of the department for an indeterminate
  173  period of time until the child reaches the age of 21 19 years or
  174  sooner if discharged by order of the court. If at any time
  175  before the child's 21st birthday the department seeks to
  176  discharge the child from juvenile probation, the department
  177  shall notify the sentencing court of its intent to discharge the
  178  child no later than 30 days before the discharge. The department
  179  shall file a written notice of its proposal with the clerk of
  180  the court and give a copy of the written notice to the
  181  sentencing judge, the state attorney, and defense counsel at the
  182  time it files the notice with the clerk of the court. Failure of
  183  the sentencing court or the state attorney to object to the
  184  department's notice of discharge within the 30-day period shall
  185  be construed as approval of the proposed discharge. If there is
  186  no objection, the clerk of the court shall close the case.
  187         2. The court may commit the child to the department for
  188  treatment in an appropriate program for children for an
  189  indeterminate period of time until the child is 21 or sooner if
  190  discharged by order of the court department. If at any time
  191  before the child's 21st birthday the department seeks to
  192  discharge the child from a commitment or after-care program, the
  193  department shall notify the sentencing court of its intent to
  194  discharge the child no later than 30 14 days before prior to
  195  discharge. The department shall file a written notice of its
  196  proposal with the clerk of the court and give a copy of the
  197  written notice to the sentencing judge, the state attorney, and
  198  defense counsel at the time it files the notice with the clerk
  199  of the court. Failure of the sentencing court or the state
  200  attorney to object timely respond to the department's notice of
  201  discharge within the 30-day period shall be considered as
  202  approval for discharge. If there is no objection, the clerk of
  203  the court shall close the case.
  204         3. The court may commit the child to the department for
  205  treatment in an appropriate program for children for an
  206  indeterminate period of time until the child is 21 years of age
  207  or sooner if discharged by order of the court, followed by
  208  probation under the supervision of the Department of
  209  Corrections. The department shall notify the sentencing court of
  210  its intent to discharge the child no later than 30 days before
  211  the discharge. The department must file a written notice of its
  212  proposal with the clerk of the court and give a copy of the
  213  notice to the sentencing judge, the Department of Corrections,
  214  the state attorney, and defense counsel at the time it files the
  215  notice with the clerk of the court. Failure of the sentencing
  216  court or the state attorney to object to the department's notice
  217  of discharge within the 30-day period shall be construed as
  218  approval of the proposed discharge. An order to discharge may
  219  not be entered until the Department of Corrections has met with
  220  the child and explained the terms of probation.
  221         4.3.The court may order disposition under ss. 985.435,
  222  985.437, 985.439, 985.441, 985.445, 985.45, and 985.455 as an
  223  alternative to youthful offender or adult sentencing if the
  224  court determines not to impose youthful offender or adult
  225  sanctions.
  226         5. Upon sentencing a child under subsection (1) to juvenile
  227  probation, juvenile commitment, blended juvenile and adult
  228  sanctions, or alternative sanctions, the court shall consider
  229  the educational needs assessment conducted pursuant to 985.18(1)
  230  and (2), the predisposition report, together with any other
  231  report prepared pursuant to s. 985.43(1) and (2), and any other
  232  relevant information. The court shall make a finding as to the
  233  child's educational status, including, but not limited to, the
  234  child's strengths, abilities, and unmet and special educational
  235  needs. The court may enter an order, as a condition of probation
  236  or commitment, that the child attain an appropriate educational
  237  goal or goals. Examples of appropriate educationally based goals
  238  are:
  239         a. Attainment of a high school diploma or its equivalent.
  240         b. Successful completion of literacy courses.
  241         c. Successful completion of vocational courses.
  242         d. Attendance and successful completion of the child's
  243  current grade if enrolled in school.
  244         e. Enrollment in an apprenticeship or similar program.
  245         (c) Adult sanctions upon failure of juvenile sanctions.—If
  246  a child proves not to be suitable to a commitment program,
  247  juvenile probation program, or treatment program under paragraph
  248  (b), the department shall provide the sentencing court with a
  249  written report outlining the basis for its objections to the
  250  juvenile sanction and shall simultaneously provide a copy of the
  251  report to the state attorney and the defense counsel. The
  252  department shall schedule a hearing within 30 days. Upon
  253  hearing, the court may revoke the previous adjudication, impose
  254  an adjudication of guilt, and impose any sentence which it may
  255  lawfully impose, giving credit for all time spent by the child
  256  in the department. The court may also classify the child as a
  257  youthful offender under s. 958.04, if appropriate. For purposes
  258  of this paragraph, a child may be found not suitable to a
  259  commitment program, community control program, or treatment
  260  program under paragraph (b) if the child commits a new violation
  261  of law while under juvenile sanctions, if the child commits any
  262  other violation of the conditions of juvenile sanctions, or if
  263  the child's actions are otherwise determined by the court to
  264  demonstrate a failure of juvenile sanctions.
  265         (d) Further proceedings heard in adult court.—When a child
  266  is sentenced to juvenile sanctions, further proceedings
  267  involving those sanctions shall continue to be heard in the
  268  adult court.
  269         (e) School attendance.—If the child is attending or is
  270  eligible to attend public school and the court finds that the
  271  victim or a sibling of the victim in the case is attending or
  272  may attend the same school as the child, the court placement
  273  order shall include a finding pursuant to the proceeding
  274  described in s. 985.455(2), regardless of whether adjudication
  275  is withheld.
  276  It is the intent of the Legislature that the criteria and
  277  guidelines in this subsection are mandatory and that a
  278  determination of disposition under this subsection is subject to
  279  the right of the child to appellate review under s. 985.534.
  280         Section 2. For the purpose of incorporating the amendment
  281  made by this act to section 985.565, Florida Statutes, in a
  282  reference thereto, subsection (1) of section 985.556, Florida
  283  Statutes, is reenacted to read:
  284         985.556 Waiver of juvenile court jurisdiction; hearing.—
  285         (1) VOLUNTARY WAIVER.—The court shall transfer and certify
  286  a child's criminal case for trial as an adult if the child is
  287  alleged to have committed a violation of law and, prior to the
  288  commencement of an adjudicatory hearing, the child, joined by a
  289  parent or, in the absence of a parent, by the guardian or
  290  guardian ad litem, demands in writing to be tried as an adult.
  291  Once a child has been transferred for criminal prosecution
  292  pursuant to a voluntary waiver hearing and has been found to
  293  have committed the presenting offense or a lesser included
  294  offense, the child shall be handled thereafter in every respect
  295  as an adult for any subsequent violation of state law, unless
  296  the court imposes juvenile sanctions under s. 985.565(4)(b).
  297         Section 3. This act shall take effect October 1, 2009.